New Zealand Law Students Journal
Last Updated: 14 January 2013
LAW AS A SECULAR ENTERPRISE
MICHAEL ISHI FORSTER∗
This essay provides a long answer to a short question: do we interpret the
law as if God wrote it? It will be argued that we do not.
More precisely, it
will be argued that key features of legal interpretation are best understood
without reference to religious assumptions.
The contrary viewpoint is most
forcefully articulated by Steven D. Smith in his insightful article “Law
as a Religious enterprise”.1 Smith’s article will be
this essay’s target for attack. Smith identifies three shared
features of scriptural
and legal interpretation and argues that, in the law,
these features seem “silly, superstitious or mindless” unless
either consciously or subconsciously, presuppose divine authorship
of the law.2 This essay will follow a three part structure organised
around these shared features of legal and scriptural interpretation. Part
will examine why both scriptural and legal interpretation see texts “as
repositories of hidden or esoteric meanings.”3 Using Ronald
Dworkin’s interpretive theory, this feature of legal interpretation will
be explained without reference to religious
assumptions. The second part of this
essay will discuss why both scriptural and legal interpretation treat texts as
for our own conduct and decisions.4 It will be argued
that we treat the law as authoritative because of secular liberal ideals and
secular constitutional practises, not
because of religious assumptions. Part
three will examine why both scriptural and legal interpretation treat
and diverse texts as forming a
∗Studying towards BA/LLB(Hons), University of Otago. The author would like to
acknowledge the Otago Faculty of Law; Professor Mark Henaghan and Professor Rex Adhar, University of Otago. In particular, the author would like to acknowledge the helpful contributions made to this article by Stephen Guest, Paul Corwin and the anonymous reviewers.
1 Smith, Steven D., “Law as a Religious Enterprise: Legal Interpretation and Scriptural Interpretation” in Richard O’Dair and Andrew Lewis (eds) Law and Religion (Oxford: Oxford University Press, 2001) 83-9 (Law as a Religious Enterprise).
3 Ibid, 84.
unified, harmonious whole.5 Smith argues that interpreting the
law like this – as if it were the work of a single author – is best
explained by the
religious assumption of divine authorship. However, this
essay will show that the appearance of divine authorship is the
result of the two previous, secular, interpretive practises.
A. Why do legal texts have hidden meanings?
In both scriptural and legal interpretation, texts are seen as having a
hidden or esoteric meaning. Smith defines a ‘hidden
meaning’ as a
meaning “not obvious upon an ordinary or casual reading”.6
In hermeneutics, meanings of “Christological significance” can
be found beyond the literal meaning of the text.7 Likewise, in the
law, specially trained interpreters can perceive meanings that an untrained
interpreter would be unlikely to perceive.8
Smith argues that understanding the law as a religious enterprise can explain why esoteric legal interpretations are respected while the esoteric use of language generally is seen as a ‘dodge’.9 If we unconsciously see the law “in some sense” as the expression of “divine semantic intention” then hidden meanings are “to be expected”.10
Mortals are not able to fully comprehend the divine. Thus, hidden
meanings in the law are respected because they are
An alternative secular explanation is possible using Dworkin’s
interpretive theory. In essence, words or text can be understood
non-literal way if this “makes the best sense of” the words in their
broader context.12 Thus, hidden meanings we accept can be explained
by virtue of their interpretive “fit”.13 Correct
meanings in the law cohere with the surrounding body of legal rules,
6 Ibid, 88.
7 Ibid, 87.
9 Smith, Law as a Religious Enterprise, 95.
12 Dworkin Ronald, Laws Empire. Cambridge, Massachusetts: Belknap Press, 1986 (Laws
13 Smith, Steven D. “Law without Mind” in Michigan Law Review, Volume 88, Number 1,
1989-1990, 104, 109 (Law without Mind).
practises.14 Further, the correct interpretation of law will be
compatible with “current values and the best available political
and moral theory”.15 Dworkin’s method recognises that
the meaning of text in its full context might be quite different to the
meaning of the same text viewed in a vacuum. Context
changes the meaning of text. So, to those untrained in recognising the full
context, it could seem as if a trained interpreter has given the text a
Smith does not think that this secular explanation threatens his thesis. Smith’s position is that religious assumptions provide the best explanation of hidden meanings in the law even when Dworkin’s theory is taken into account. This is because, according to Smith, hidden interpretations produced by Dworkin’s “sophisticated project of interpretation” are functionally similar to creative lies that distort language.16 Further, we have no reason to respect hidden interpretations simply because they are creative – hidden interpretations are creative (or at least non-literal) by definition. To bolster his position, Smith uses an article by Robert Nagel which notes the similarities between Dworkin’s jurisprudence and Ex-President Clinton’s embellishments in regards to the Lewinsky scandal.17 Nagel notes that both Dworkin’s theory and Clinton’s embellishments use high levels of abstraction to assign a counterintuitive meaning to words.18 For example, in the law flag burning is interpreted as “speech” and in Clinton’s embellishments oral sex was not “sexual relations”.19
Also, both Dworkin and Clinton creatively use language.20 This creative use of language arises in response to obstacles that are preventing the liar’s or lawyer’s progress.21 Despite these similarities, Clinton’s rationalised embellishments led to an “incredulous public reaction” while, conversely, skilled legal interpreters are respected and admired.22
Smith thinks that this respect for hidden meanings in the law flows
from underlying religious assumptions.
16 Smith, Law as a Religious Enterprise, 90.
18Nagel, Robert F., “Lies and Law”, Harvard Journal of Law and Public Policy, Volume 22
1998-1999, 605, 607 (Lies and Law).
19 Ibid, 608, 609.
20 Ibid, 608.
21 Ibid, 611.
22 Ibid, 608, 612.
Smith’s argument is mistaken. Dworkin’s interpretations
fundamentally differ from creative lies, and this difference
explains why hidden
meanings in the law are respected. Under Dworkin’s theory correct
interpretations follow a restrictive
logical structure. Lies do not. Non-
literal meanings that lawyers respect and admire can be explained because of
coherence. There are two main steps in Dworkin’s
interpretive process which restrict the outcomes that can be considered
Pre-interpretation recognises that people can only intelligibly agree or
disagree about the application of law when
they share some
assumptions and practices.24 Dworkin’s point is that there
cannot be argument about a concept if the participants in the argument are
mistaken about what
they are arguing over. To illustrate, if two chefs are going
to sensibly argue about whether the flesh or the rind of an orange is
they first need to agree upon whether they are discussing baking or fruit
salads. This level of pre-interpretive
agreement is needed not only for the
subject matter of the discussion, but also for the interpretive method that the
will use to make the best sense of the subject matter.25
For example, in adjudication, two opposing advocates would need a degree
of pre- interpretive agreement about the general area of
law in question (the
subject matter) and the general methodology which will produce a correct
answer. They cannot have a sensible argument if one advocate’s methodology
is legal reasoning from precedent while the other advocate is planning to
read the entrails of a sacrificial animal for the
answer. In many instances
pre-interpretation will not require explicit argument; indeed, Dworkin
acknowledges that this stage of
the interpretive process is often
assumed.26 Two lawyers, for example, will probably agree on the
subject matter at issue and the types of argument that can be used to analyse
the subject matter.
23 Dworkin, Laws Empire, 65, 66. There is also a third stage called ‘Post-interpretation’ (discussed at page 66 of Laws Empire) which essentially applies the correct interpretation to the relevant facts. A detailed discussion of this interpretive phase is not necessary for the purposes of this essay.
24 Dworkin, Ronald. Justice in Robes (Cambridge, Mass: Belknap Press, 2006) 9.
25 Ibid, 10.
26 Ibid, 12.
This pre-interpretive phase is the first step to ensuring that while meanings in text might be hidden they will not be surprising to an informed interpreter. In contrast, hidden meanings that we see as
‘distortions of language’ are often the result of different perceptions at
the pre-interpretive stage. For example, the American public assumed
Clinton would give an everyday explanation of the Lewinsky affair.27
Clinton’s technical use of the words ‘sexual relations’ did
not cohere with this assumption. In consequence people
felt surprised or tricked
by his use of language.28 Because of different assumptions at the
pre- interpretive stage Clinton was not seen as giving sensible explanations for
and the ‘hidden’ meaning he gave the term “sexual
relations” was seen as a ‘distortion’.29
Dworkin’s second interpretive stage has two interrelated strands.30
According to Dworkin, correct interpretations must have both legal
‘fit’ and moral worth.31 Legal ‘fit’ is the
idea that an interpretation must be consistent with the surrounding legal
context.32 To illustrate, the metaphor of a chain novel with
multiple authors is helpful.33 While each subsequent author has some
freedom to develop the novel, they are constrained by what has already been
written. For example,
each author would need to have regard to things like
previous plot developments and the names of the characters if the novel is to
make sense.34 Likewise, in the law, developments must fit with the
past. Legal interpretations must coherently fit within their relevant legal
the surrounding body of statutes and precedents.
Dworkin’s claim that correct interpretations must have moral worth is
more controversial. This claim requires Dworkin to show
that the law has a moral
element. He provides several arguments to this end. First,
27 Nagel, Lies and Law, 605.
28 Ibid, 605, 609.
29 Ibid, 609.
30 In ‘Justice in Robes’ Dworkin breaks the interpretive stage into the ‘Jurisprudential’ and the ‘Doctrinal’ stage at pages 12 and 13. The Jurisprudential stage deals with legal fit
while the doctrinal stage deals with wider moral fit. In this essay, it is easiest to deal with both these stages together.
31 Dworkin, Justice in Robes, 14, 15.
32 Guest, Steven., Ronald Dworkin. Edinburgh: Edinburgh University Press, 1992, 49 (Guest).
34 Ibid, 50.
Dworkin argues that the coercive power of the State must ultimately rest upon moral justifications.35 Other potential justifications for the State’s coercive power obviously exist but, according to Dworkin, they will not be the best justifications.36 For example, it might be argued that our legal system ultimately rests upon the pragmatic justification of
‘majority rule’. However, the idea of ‘majority rule’ would not draw a
distinction between an egalitarian legal system and a legal system that held
a minority group as slaves. Because we think of the law
as a system of justice,
not injustice, ‘majority rule’ is not the best ultimate
justification of our legal system. Dworkin
says that the law has a moral
dimension for a second set of reasons. Namely, there are moral standards, or
principles, in the law.37 Principles exist because of their
substance. In comparison rules are observed because of their source or
“pedigree”.38 Dworkin justifies his assertion that
‘principles exist’ because this makes the best sense of legal
and judgements.39 When we argue about hard
cases in the law we act as if principles exist.40 Because the law
has a moral dimension the best legal interpretations will do more than
‘fit’ with the surrounding body
of statutes and cases; they will
also have moral worth.
Dworkin does not think that talking about moral worth is pointless. His idea
is that a right moral answer is the product of everyday
are given, and the moral position is unhelpful and misleading. First, there
is no logical requirement
that a right answer needs proof. For example, a
peasant in the Middle Ages could be right in thinking that the earth was round
even if she could not prove that this is the case. Further, the very
proposition that proof is needed for something to be true is
not true under its
own standard – it cannot be proved. This argument is purely defensive.
It is protects Dworkin’s
idea that a best justified answer can be right
even though it cannot be objectively proved to be right. Dworkin’s
point is that forgoing moral argument because of “objective
truth” concerns is
35 Ibid, 33.
37 Dworkin, Ronald., Taking Rights Seriously. London: Duckworth, 1977, 40 (Taking Rights
38 Ibid, 17, 26.
39 Ibid, 45.
40 A ‘hard case’ in the law is simply a case where the
outcome is not immediately obvious, but is the product of legal
unproductive. The reality is that we do argue about moral issues. Further,
we give reasons for our moral convictions. If we think
rational argument can
help us reach the right conculsions in everything from politics to tlaw to
predicting who will win the rugby,
why reject the worth of rational argument in
the moral realm? As put by Dworkin, when one is confronted with a moral
it will not be wrong to reply, “but that is only your opinion.”
However, you must ask yourself whether, after reflection,
it is your opinion as
The cumulative effect of these moral and legal requirements of interpretation
is that legal interpreters are restricted when they
interpret texts. Dworkinian
interpretation produces ‘hidden’ meanings of text that are
consistent with both the law and
our moral convictions. This contextual and
ethical consistency explains, without religious assumptions, why we respect
in the law while we see unrestricted displays of linguistic
creativity as a communicative ‘dodge’. Hidden meanings in
are interpretations that ‘fit’ with the principles, practises and
ethics that surround the question. In contrast,
an embellishment or lie will cut
against an informed perception of reality. Note that this difference between
lies and interpretations
is only discernable when the context surrounding the
question is known. This is why lawyers can derive meanings from legal texts
would not be evident to laymen; lawyers have a well informed understanding of
the surrounding legal context.
Smith’s article challenged us to account for the difference between
“sophisticated” interpretations and lies which
language.42 His argument was that an unconscious religious
assumption can best account for this difference (namely that we see legal
as “in some sense” the product of divine authorship, so hidden
meanings are “expected”). Upon reflection,
and with Dworkin’s
interpretive theory in mind, we can provide a better secular explanation.
differ from lies because of their
sophistication. Lies are a creative free-for-all. In contrast, correct legal
interpretations are restricted in their creation and have coherence with
surrounding law and our moral convictions. This difference explains why we
41 Dworkin, Laws Empire, 86
42Smith, Law as a Religious Enterprise, 90.
interpretations of the law but not embellishments of language even though
both invoke the ‘hidden’ meaning of text.
A few final points can be made about Smith’s argument that religious
assumptions best explain why some hidden meanings
are accepted while
others are not seen as credible. Smith asks why hidden meanings are accepted in
legal and religious texts when
they are not accepted in ordinary
language.43 However, this observation is mistaken. What Smith
has seen as a distinction between legal and religious
on the one hand, and ordinary use of language on the other, is
actually a distinction between coherent interpretations and manipulations
language. In ordinary language, just as in the law, the meaning of a word in its
full linguistic, ethical and social context might
be different to the literal
meaning of the word if viewed in a vacuum. To those considering the word in
isolation, a contextual meaning
would appear to be a ‘hidden’
meaning. To borrow an example from Stanley Fish, imagine a notice in a plane
says “do not put waste down the toilet”.44
Here, we obviously recognise that waste does not include excrement. In
contrast, when looking at a hose connection on the side of
a campervan labelled
“waste outlet” we would clearly read waste to mean “human
excrement”. The hidden meaning
of ‘waste’ is accepted in both
these instances because it coheres with the broader context. Interpretations
accepted in law also cohere with the broader context in this
Having given a secular explanation for why certain ‘hidden’
meanings in language are accepted it is pertinent to
ask Smith the
converse question: to what extent do religious assumptions actually
explain hidden meanings in law and scripture?
Smith’s argument is that because humans will never be able to fully
comprehend the divine, we expect to find hidden meanings
in religious and legal
texts. However, our very conception of God supplies the answer to Smith’s
argument. God is omnipotent,
omniscient and omni- benevolent.45 A
benevolent God would want to clearly communicate
44 Fish, Stanley., Doing what comes Naturally: Change, Rhetoric and the Practise of Theory in Literary and Legal Studies. Durham, North Carolina: Duke University Press, 1989, 302 (Doing What Comes Naturally.)
45 McCann, Hugh J., "Divine Providence", The Stanford
Encyclopedia of Philosophy (Fall 2006
with humanity.46 Further, an omnipotent God would, by
definition, have the power to clearly communicate with humanity. Thus, without
by Smith, ‘religious assumptions’ poorly explain
why we accept hidden meanings in scripture and the law. Our religious
assumptions cut against the existence of hidden meanings in scripture.
In sum, ‘religious assumptions’ seem to provide a poor
explanation of why hidden meanings are accepted in the law. Further,
acceptance of hidden meanings in legal texts can be convincingly explained using
Dworkin’s interpretive theory. Namely,
hidden meanings that cohere with
their broader context are accepted as correct. In comparison, distortions
of language which
do not have any broader contextual coherence are treated with
scorn in both the law and ordinary language.
B. Why do we treat legal texts as authoritative?
The second similarity Smith notes between legal and scriptural interpretation
is that both methods treat texts as authoritative for
our conduct and
decisions.47 By this Smith means that both legal and scriptural texts
are seen as authoritative on the basis of their own intrinsic authority.
scripture because it is scripture and we obey the law “because it is the
law”. Smith notes that this is a striking
contrast to the “forward
looking, pragmatic costs-and-benefits decision making that we employ in many
areas of life.”48 He argues that it is hard to understand why
we would treat legal texts as intrinsically authoritative.49
However, this would not be hard to understand if legal texts, like
scriptural texts, were supposed to express the will of
Edition), Edward N. Zalta (ed.), URL =
<http://plato.stanford.edu/archives/fall2006/entries/providence-divine /> Last accessed 28 May 2008.
46 God’s word is meant to provide a code for proper religious and secular conduct. (Kuntz, Paul Grimley, The 10 Commandments in History: Mosaic Paradigms for a Well- Ordered Society, (Grand Rapids, Mich: Eerdmans, 2004) Ch 1). If people are to follow God’s instructions without conflict, his or her instructions would need to be clear. A benevolent God would not want unnecessary conflict and would therefore ensure all his communications with mankind could be clearly understood.
47Smith, Law as a Religious Enterprise, 90.
48 Ibid, 91.
Smith is overstating the problem. It is not difficult to explain why we treat the law as authoritative even if a pragmatic costs-and-benefits analysis would yield a more ‘rational’ result in individual cases. We respect the law as authoritative as part of the Lockean social contract.51
In exchange for protection, individuals allow the curtailment of some
freedoms by the state.52 We prefer the governance of the law to a
state of nature where life is “nasty, brutish, and short”.53
Further, we respect the law as authoritative because we trust the
constitutional structure which creates, interprets and applies the
feels comfortable being governed by a state operating under the rule of law,
whose coercive power is checked by the
separation of powers and political
Further, because the law is a body of generalised rules and principles there will be instances where a legal outcome differs from what a pragmatic costs-and-benefits analysis would dictate.55 The reason we treat the law as authoritative, even in this circumstance, is because we value the principle of legal certainty.56 Legal certainty, by way of predictable law, is a control on the on the exercise of state power.57
Even if rules are not always just, we can plan our activities successfully
under rules provided they are consistently interpreted and applied.58
As put by John Smillie, this predictability of legal outcomes
“encourages future planning and co-operative activity”.59
Thus, a key reason for treating the law as authoritative is precisely
because it is not pragmatic.
51 Locke, John., The Second Treatise of Government, (New York; Bobbs Merrill) (First
Published 1690) 76, 77, 78.
53 Hobbes, Thomas., Leviathan (New Jersey, Prentice Hall, 1958) (Originally published in
54 Blackstone, W., Commentaries on the Laws of England. (Reprint of 1st ed, London, Dawsas of Pall Mall, 1966) Volume 1. 142.
55 Schauer, Frederick., Playing by the Rules: A Philosophical Examination of Rule-Based Decision Making in Law and in Life. New York: Oxford University Press, 1991, 17 (Playing by the Rules).
56 Craig, P. P., “Substantive Legitimate Expectations in Domestic and Community Law”
Cambridge Law Journal, July 1996, 289, 299.
57 Stinchcombe, Arthur L., “Certainty of the Law: Reasons, Situation-Types, Analogy and
Equilibrium. The Journal of Political Philosophy: Volume 7, Number 3, 1999, 209.
58 Schauer, Playing by the Rules, 138.
59 Smillie J., ‘Formalism, fairness and efficiency: civil adjudication in New Zealand’ 
NZ Law Review 254, 257.
This raises a prima facie objection. On the one hand, it has been argued that
correct interpretations in the law will only be discernable
to those with a full
knowledge of the surrounding legal context. This precludes all but specialised
legal interpreters from knowing
what the law is. On the other hand, it has been
argued that Smith has erred by not taking into account the principle of legal
For the principle of legal certainty to have any worth it must be
possible for the majority of the people to find out the majority
of the law the
majority of the time. If people do not know the law they cannot plan future
conduct around it.
This charge of self-contradiction does not stand. Nowhere does Smith assert
that all legal text has hidden meaning.60 Rather,
Smith’s point is that there are tricky problems of interpretation which
are solved by reference to ‘hidden’
Dworkin’s interpretive theory explains why some
‘hidden’ interpretations are respected as providing the answer
The point is that the vast majority of legal text will not be hard cases
requiring interpretation. Most cases before the courts are
not argued on a legal
basis; the law is applied to the facts (which often are in dispute) with little
argument as to the substance
of the law. This is consistent with Smith’s
observations, Dworkin’s theory and the principle of certainty in the law.
Because the majority of the law is unambiguous the majority of the time, the
general public can embrace legal certainty as a worthwhile
goal. The principle
of legal certainty, combined with our constitutional principles and the Lockean
idea of a social contract explains,
in a completely secular manner, why the law
is treated as authoritative.
The final similarity between legal and scriptural interpretation identified
by Smith is that both types of interpretation treat seemingly
diverse texts as forming a unified and harmonious whole.62 Smith
notes that this assumption is extraordinary.63 Despite statutes made
by different legislatures with different aims and intentions and despite
decisions made by different judges,
in different centuries, with different
temperaments and training, we view the law as constituting and
60 Smith, Law as a Religious Enterprise, 83.
61 Ibid, 89.
62 Ibid, 84.
reflecting a unified, coherent whole.64 The law, like the Bible, Qur’an or
Torah, is seen as the work of a single author.
However, there is nothing mysterious about this aspect of the law. It can be
explained by summarising the conclusions of the previous
parts of this essay.
Under the Dworkinian interpretive method, the correct interpretation of hard
cases will be consistent with the
surrounding legal rules and principles. This
drive for consistency and coherence is further buttressed by the fact that we
the law as authoritative. Then, because the law is seen as authoritative,
we attempt to give full effect to it. This means we try
to read inconsistent
texts in a consistent manner; we give the law a coherent and consistent meaning
even if pragmatic considerations
would require a different result. This
is because we value the principle of legal certainty. In sum, our secular
of interpretation aim for the law to represent a consistent, coherent
whole. Smith sees our approach to interpretation as presupposing
authorship of the law.65 He has got it backwards. The appearance of
divine authorship in the law is merely a symptom of our wholly secular approach
It has been argued that we do not interpret the law as if God wrote it.
Interpretive practises in the law make sense without reference
assumptions. This thesis was advanced in three parts. These parts were organised
as an attack on the main pillars of
Smith’s article “Law as a
Religious Enterprise”. Part one set out Smith’s position that
assumptions best explain the acceptance of hidden meanings
in legal texts. This position was wrong, as hidden meanings in legal texts
accepted due to their coherence with the surrounding body of law and our moral
convictions. This idea, that context can alter
literal meanings, holds true in
ordinary language as well as in the law. Part two of this essay explained the
authority without reference to religion. We
treat the law as authoritative because rule by law is an attractive alternative
Hobbesian state of nature. Further, the secular principle of legal
certainty explains why we continue to treat the law as authoritative
though a pragmatic cost-and-benefits
64 Ibid, 93.
65 Ibid, 98.
analysis might yield more rational results in individual cases. Smith’s observation that the law presupposes a single divine author was countered in the final part of this essay. Because correct legal practise demands coherence and consistency in the law, a symptom of our secular practices is that the law appears to be the work of a single author.